Ninth Circuit Upholds Free Speech Rights of Academic Employees; Pickering Test, not Garcetti Decision, Applies

In Garcetti v. Cevallos, 547 U.S. 410 (2006) the United States Supreme Court held that when a public employee speaks out in his or her capacity as a public employee (and not as a private citizen) the remarks are not protected by the First Amendment and may support disciplinary action by the employer.  In the wake of that decision, questions have arisen as to whether various individuals were, in fact, speaking out in their “official capacity” or as private citizens on matters of public concern.

One question that lingered in the wake of the Garcetti decision was whether that decision would apply to academic employees at public universities, who maybe speaking out as part of their official duties.  There is constitutional tension in this area because the courts have traditionally afforded special protection – and considerable leeway – to academic institutions given their special role in society.  Thus, the Supreme Court has noted that “[t]he essentiality of freedom in the community of American universities is almost self evident. . . . To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. . . . Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.” Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957).

The case of Demers v. Austin dealt with the important issue of whether Garcetti, and its obvious limitation on a public employee’s freedom to speak out at work, would apply in a university setting. The Ninth Circuit squarely concluded that Garcetti does not apply to academic employees.  “We conclude that Garcetti does not — indeed, consistent with the First Amendment, cannot — apply to teaching and academic writing that are performed “pursuant to the official duties” of a teacher and professor. We hold that academic employee speech not covered by Garcetti is protected under the First Amendment.”

Speech in the academic context will be judged by the so-called “Pickering test” (see Pickering v. Board of Education, 391 U.S. 563 (1968)).  That test has two parts. First, the employee must show that his or her speech addressed “matters of public concern.” And second, the employee’s interest “in commenting upon matters of public concern” must outweigh “the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” See Pickering, 391 U.S. at 568.

In Professor Demers’s case, his writings contained, in the court’s words “serious suggestions about the future course of an important department of [the university], at a time when the [local academic community] was debating some of those very suggestions. We therefore conclude that [Demers’s writings] addressed a matter of public concern within the meaning of Pickering.”

It should be noted that Professor Demers did not necessarily win on the merits. After concluding that his speech was protected, the appellate court remanded the case for a factual determination as to whether the writings in question actually caused the university to take the challenged adverse employment actions against Demers, or whether those actions were undertaken for other, legitimate reasons.

For your convenience, a complete copy of the Ninth Circuit’s opinion is attached. 

Our firm represents school administrators, teachers, parents and students and schools/school districts in a variety of contexts.  Please feel free contact us if you need advice in this area.

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